The claimant was employed as a shop assistant in what was described as a village shop.   The claimant suffered from epilepsy and it was conceded that this was a disability in line with the Equality Act 2010 (Disability Discrimination Act 1995 in Northern Ireland).  In terms of the disability, it was clear from the evidence that it had very little effect on the day-to-day activities that were carried out by the claimant except that she did not climb to the higher shelves nor did she change light bulbs.

The issue that led to the case arose on 19th July 2017 when she had an argument with her manager.  She was subsequently told to resign the next day or be dismissed.  After she was told this she suffered what was termed by the claimant’s partner as a ‘major seizure’.   The claimant’s partner telephoned the respondent to inform them of this.   Accordingly, she was given a fit note on 20th July which was extended on 21st August 2017. It was the day following this that the claimant was told that she no longer worked for the company.  The reason for the fit note was work related stress.  As a result of this, the Tribunal held that the absence was not in consequence of the disability and for that reason there was no evidence to demonstrate that the events caused an exacerbation to the epilepsy.  There was no procedure followed by the respondent in dismissing the Claimant and for this reason, the unfair dismissal claim brought to the Tribunal was successful.

The claimant appealed the decision on disability discrimination.  The respondent did not file a cross-appeal in relation to the finding of unfair dismissal (and other elements such as unlawful deduction from wages).   The appeal was on the basis that the Tribunal Judge had erred in concluding based upon the GP records rather than the content of the fit notes and that it did not give enough heed to the evidence of the claimant outside of the medical evidence.  The question was whether the cause of absence (on foot of the event of being asked to resign) was related to the disability or not.    There was reference to Pnaiser v NHS England which held that there must be a causal link between the ‘something’ that causes unfavourable treatment and the disability, but that it may be more than one link.   The court will have to look at how many links there are between the disability on one side and the impugned treatment on the other.  If there are many then it will be harder to establish the requisite connection.

The EAT outlined that the Tribunal was correct in giving greater weight to the medical evidence which demonstrated that the absence was as a result of ‘stress’ rather than the disability.  Indeed, the EAT went further stating that there was little to nothing in the claimant’s evidence that contradicted the medical evidence.  For that reason, the Tribunal was correct in outlining that the cause of the absence was not related to the disability so not claim in disability discrimination could arise.

Practical Lessons

This case demonstrates that there is a test of causation that needs to be applied when an argument is made in relation to disability discrimination.  This will be a matter for evidence and for this reason it is important that employers put proper procedures in place that allow reasons for decisions to be recorded.   This will bolster any defence if there is a suggestion that a decision was made due to the employee’s disability.
https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-anna-marie-wheatstone-v-blakeney-news-food-and-wine-ltd-and-others-ukeat-0287-19-la